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ACLU of Southern California Threatens To Represent Those Sued By City of Banning For Filing Petition To Reverse Merger of City Fire Department With State Forestry

The ACLU of Southern California, on Sept. 29, sent the City of Banning a letter threatening to enter a lawsuit on behalf of petitioners who exercised their First Amendment rights to petition the city after the Banning City Council sued them for gathering signatures opposing a merger of the Banning Fire Department with the Riverside County California Department of Forestry.

Last July, the Banning City Council decided to merge its fire services with the state-run agency. A former council member, Frank Burgess, launched a petition drive to block the merger, gathering 1,503 signatures. The County Registrar of Voters certified 1,102 of the signatures on August 31.

Banning filed a lawsuit on September 8 [City of Banning vs Burgess RIC 317408] against the petitioners claiming the right of referendum was not available to them because state law lets the city contract for fire services. Banning seeks a declaration voiding the petition, an injunction "restraining and enjoining defendants from taking actions inconsistent with this order" and seeking court costs from defendants. The ACLU says this would chill defendants' free speech rights.

The letter to Banning City Attorney John Wilson from ACLU/SC attorney Peter Eliasberg follows:

"I am writing to express serious concern about the lawsuit filed by the City of Banning against people who have engaged in their constitutionally protected right to petition government. It appears to me that two aspects of the relief requested by the City violate the First Amendment because they have the clear effect of chilling the rights of petitioners protected by the First Amendment and Liberty of Speech Clause of the California constitution.

Asking the Court to award the City costs in this case against the defendants who have done no more than exercise their constitutionally protected right to petition government, is an improper burden on First Amendment rights. It should be obvious that seeking to "tax" people's exercise of their rights, even if the Court were to hold that the subject of the petition is one that is not subject to referendum, would have an improper chilling effect on persons who might exercise their right to petition in the future.

Second, the request for preliminary and permanent injunctive relief in paragraph two of the prayer for relief in the complaint appears to be another improper attempt to infringe the defendants' constitutionally protected rights. Although the requested relief is disturbingly vague, I can only assume that its purpose is to prevent the defendants from filing similar petitions in the future. Even if the Court holds that the subject matter of the petition is not one that may be subject to referendum, no government has a right to restrain defendants from filing any petition they choose with the government.

In light of the severe First Amendment problems with the relief you seek in this complaint, you should immediately withdraw it. If you choose to continue to seek declaratory relief, then you should file an amended complaint that does not request either costs or any injunctive relief against the defendants. If you do not, the ACLU will seriously consider entering this suit on behalf of the defendants to protect their rights under the State and Federal constitutions."